Amaker v. Gerbing

Background

Anthony D. Amaker brought this action while incarcerated at Bare Hill Correctional Facility and later was released. The court had previously found that his complaint failed to state a claim for relief but allowed him to amend. After he filed an amended complaint, Judge Roman allowed him to file a second amended complaint to restate his claims against Lieutenant John Doe. Amaker did not file that second amended complaint.

Lieutenant John Doe

The amended complaint listed Lieutenant John Doe as a defendant but did not allege facts describing what Doe did or failed to do. Because Amaker did not further amend after receiving permission to do so, the court treated the amended complaint as the operative pleading and dismissed the claims against Doe for failure to state a claim under 28 U.S.C. § 1915A(b)(1). The court did not add a prejudice designation to this dismissal.

Service on the Remaining Defendants

The court directed the Clerk of Court to issue summonses for Otisville Superintendent K. Gerbing; Otisville Deputy of Security P. Early; Otisville Deputy Superintendent of Administration S. Roberts; Otisville Deputy Superintendent of Programs S. Bennett; Nurse P. Wolff; Dr. Gusman; Correction Officer J. Rio; Correction Officer K. Barber; Commissioner Anthony J. Annucci; Deputy Commissioner J. McCoy; Director of Special Housing D. Venetozzi; and Deputy Commissioner of Facility Operations J. Bellnier.

Amaker was directed to serve each defendant with the summons and amended complaint within 90 days after the summons was issued. The court warned that, if he did not serve the defendants or request an extension within that period, it could dismiss the claims against them under Rules 4 and 41 of the Federal Rules of Civil Procedure for failure to prosecute. The opinion states that Amaker was not proceeding without paying the filing fee and therefore was not entitled to assistance from the United States Marshals Service in serving the defendants.

Discovery

The court ruled that Local Civil Rule 33.2 applies. That rule requires defendants in certain prisoner cases to respond to specified, court-ordered discovery requests. The defendants must serve their responses within 120 days after service of the amended complaint and must quote each request word for word in their responses.

Disposition

The court deemed the amended complaint the operative complaint, dismissed the claims against Lieutenant John Doe for failure to state a claim, directed issuance of summonses for the twelve remaining defendants, and applied Local Civil Rule 33.2. It also certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith and denied in forma pauperis status for purposes of an appeal.